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Wu v. Seoul Garden, Inc.

United States District Court, E.D. New York

January 22, 2018

JINDAN WU et al., Plaintiffs,
v.
SEOUL GARDEN, INC. et al., Defendants.

          MEMORANDUM AND ORDER

          Steven L. Tiscione United States Magistrate Judge

         Before this Court is a cautionary tale in discovery management. Plaintiffs' and Defendants' sloppy work has consumed judicial resources with three motions to compel. Now, discovery in this case has finally closed, and Plaintiffs have asked this Court to sanction Defendants for delaying discovery, for submitting misleading answers and documents to discovery requests, and for failing to properly respond to requests for admission. To remedy this, Plaintiffs have asked that this Court grant reasonable attorneys' fees and deem responses to requests for admission admitted. To support this request, they invoke this Court's authority under 28 U.S.C. § 1927, Rules 26, 36, and 37 of the Federal Rules of Civil Procedure, as well as this Court's inherent authority.

         For the reasons discussed below, this Court grants Plaintiffs' motion in part. Defendants will pay for the costs and attorneys' fees associated with the First and Third motions to compel. Mr. Siegert will pay for their fees and costs associated with the instant motion for sanctions. Additionally, Plaintiffs have the option of re-deposing Myong Ja Koo with the costs to be paid by Mr. Siegert, or of having Mr. Siegert pay for their costs and fees associated with her original deposition.

         BACKGROUND

         The substantive claims in this case are straightforward. Defendant Natural Tofu Restaurant Corp., which is owned by Man Suh Koo and Myong Ja Koo, employed the Plaintiffs-Jin Dan Wu, Soo Jin Lee, and Jung Hee Kim. Third Amended Compl. ¶¶ 17-19, 27, 37 (Dkt. No. 26). Plaintiffs allege that during the course of their employment Defendants violated various wage, recordkeeping, and notice requirements of the New York Labor Law (“NYLL”) and Federal Labor Standards Act (“FLSA”). Id. ¶¶ 67-94. Plaintiffs also allege that Defendants violated the anti-age discrimination prohibitions contained in the New York State Human Right's Law (“NYSHRL”) and New York City Human Rights Law (“NYCHRL”) by firing them in order to hire younger employees. Id. ¶¶ 95-104.

         The substance of this dispute, however, is anything but straightforward. In waves, Plaintiffs served multiple discovery devices-two requests for production, two sets of interrogatories, and nine sets of requests for admission (“RFAs”)-on Defendants, leading to three separate motions to compel. See Pls.' First Mot. to Compel (Dkt. No. 31); Pls.' Second Mot. to Compel (Dkt. No. 37); Pls.' Third Motion to Compel (Dkt. No. 41). Plaintiffs moved for sanctions once during discovery (see Dkt. No. 41) and with the instant motion they have renewed their request now that discovery has closed. See Pls.' Second Mot. for Sanctions (Dkt. No. 46).

         Plaintiffs' grievances in the instant motion can be grouped into the following four categories: (1) Defendants delayed discovery and forced Plaintiffs to file three motions to compel; (2) Myong Ja Koo and her counsel failed to properly sign the responses to RFAs; (3) Defendants produced monthly time sheets and represented that those sheets were contemporaneous records when in fact they were summaries produced after the commencement of litigation; and (4) several of Defendants' discovery responses were false.

         I. The Motions to Compel.

         A. The First Motion to Compel.

         The road to this motion began in July 2016, when counsel for the parties, Mr. Siegert for Defendants and Mr. Lim for Plaintiffs, first corresponded. See Dkt. No. 52 at 6. In a series of emails and letters expressing a mutual desire to settle this matter, Mr. Lim asked for and Mr. Siegert promised to provide payment records. Dkt. No. 52 at 6-11. On August 26, Mr. Lim again asked if the promised records were forthcoming, as he hoped that he could avoid drafting a formal request for production. Dkt. No. 52 at 11. Apparently, Mr. Siegert did not provide a satisfactory answer, as Plaintiffs served their first set of interrogatories, request for production, and RFA on August 29. See Pls.' First Request for Produc. (Dkt. No. 31-1); Plaintiffs' First Set of Interrogatories (Dkt. No. 37-1); Plaintiffs' First RFA (Dkt. No. 37-4). They then served a second RFA and request for production on November 4. See Pls.' Second Request for Produc. (Dkt. No. 31-2); Plaintiffs' Second RFA (Dkt. No. 37-5).

         At the time, only two Defendants were in the case, Myong Ja Koo and the corporation. See Dkt. No. 1 ¶¶ 19-32. Plaintiffs did not specify whether the interrogatories and requests for admission were directed to Seoul Garden or Myong Ja Koo. See Dkt. Nos. 37-1, 37-4, 37-5.

         Ultimately, Defendants responded to the interrogatories and both RFAs on behalf of Seoul Garden but not on behalf of Myong Ja Koo. See Dkt. No. 37 at 1-2. They never responded, however, to the request for production, with the exception that on August 31, 2016, Mr. Siegert emailed the previously promised set of “payment records.” See Dkt. No. 52 at 12. Defendants had thirty days to respond to that first request (see Fed. R. Civ. P. 34(b)(2)(A)), meaning that the response was late as of September 28.

         Plaintiffs did not press the issue until December 8, 2016-two days after the initial settlement conference-when they wrote a letter asking for the late production. See Dkt. No. 31-3. Defendants, however, did not comply. See Dkt. No. 33 at 1.

         In the meantime, Plaintiffs filed the Third Amended Complaint and added the third Defendant-Man Suh Koo-on December 27, 2016. See Dkt. No. 26 ¶¶ 36-45. Defendants answered that complaint on January 31, 2017. Dkt. No. 29. Defendants renewed their request for the production on February 2 (Dkt No. 31-5 at 2). On February 16, the parties participated in a second settlement conference, and Plaintiffs' reiterated their request for the outstanding documents. See Dkt. No. 31-6. Plaintiffs followed up on the requests via phone and Defendants' counsel said that he had not received a response from his clients. Dkt. No. 31 at 2.

         Plaintiffs again followed up with an email on March 2. Dkt. No. 31-7 at 2. They received no reply, and so they placed a phone call to Mr. Siegert on March 6. Dkt. No. 31 at 2. Mr. Siegert told Plaintiffs to follow up in two days and so, on March 9, Plaintiffs once again emailed Mr. Siegert. Dkt. No. 31-8 at 2. Again, having received no reply, Plaintiffs followed up by phone on March 13 and were told that they would receive a reply on March 15. Dkt. No. 31 at 2. Mr. Siegert eventually responded on March 15. Dkt. No. 31-9 at 2. His response was that Defendants possessed no other relevant documents. Id.

         In response to this intransigence, Plaintiffs filed their First Motion to Compel on March 18, 2017. See Dkt. No. 31. Plaintiffs apparently did not take issue with the responses to the interrogatories or first two RFAs, as they requested no relief from this Court on either request at that time. See Dkt. No. 31.

         This Court granted the First Motion to Compel in part, giving Defendants until April 28, 2017 to produce responses to all of Plaintiffs' outstanding discovery requests. Dkt. No. 35. Defendants complied. See Dkt. No. 37 at 1-2.

         B. The Second Motion to Compel.

         Plaintiffs renewed their liberal use of requests for admission on March 27, 2017 when they served their third RFA. See Plaintiffs' Third RFA (Dkt. No. 37-6). Like the previous two RFAs, Plaintiffs' Third RFA did not specify the recipient. Id. Defendants responded to that RFA on April 29 on behalf of the corporation but not on behalf of the other defendants, Myong Ja Koo and Man Su Koo. See Dkt. 37 at 2.

         On May 16, 2017, Plaintiffs changed their strategy when they served their fourth set of RFAs, which were directed to specific defendants. See Dkt. No. 37-7 at 2, 13, 22. Defendants accordingly submitted responses from each defendant by May 26. See Dkt. No. 37-8, Dkt. No. 37-9, Dkt. No. 37-10, Dkt. No. 37-11.

         Plaintiffs, however, were unsatisfied with the responses. On May 26, Plaintiffs wrote to request that Defendants provide “details supporting . . . denials” as well as the details supporting a failure to admit or deny. Dkt. 37-12 at 2. Plaintiffs also indicated-for the first time-that they expected Myong Ja Koo to reply to the interrogatories and first three RFAs. Dkt. 37-12 at 1-2. On May 30, Defendants wrote to dispute Plaintiffs' statement that responses to RFAs must provide a “factual basis” for denials. Dkt. No. 37-13. Plaintiffs replied that they disagreed and gave Defendants until June 2 to comply with their requests. Dkt. No. 37-3.

         Plaintiffs filed their Second Motion to Compel on June 7, 2017. See Dkt. No. 37. In that motion, they asked this Court: (1) to order Myong Ja Koo to reply to the interrogatories; and (2) to order all three Defendants to amend the responses to the RFAs. Dkt. No. 37 at 3. They also indicated that they believed that Myong Ja Koo had admitted to the first three RFAs by failing to provide a response. Dkt. 37 at 2.

         Before the hearing on the Second Motion to Compel, however, the parties came to an amicable resolution and this court granted the motion in full, giving Defendants until July 5, 2017 to comply. Dkt. No. 40; Dkt. No. 41 at 1.

         C. The Third Motion to Compel and First Motion for Sanctions.

         Apparently, however, the parties' understanding was not mutual. Mr. Siegert believed that Plaintiffs' counsel, Kendal Sim, had agreed to receive only an amended response from Myong Ja Koo to the fourth RFA. Dkt. No. 43 at 2. Accordingly, Mr. Siegert provided Myong Ja Koo's amended response to the fourth RFA, but not a response from her to the interrogatories or an amended response from the other two defendants for the fourth RFA. Dkt. No. 41 at 2.

         After Mr. Sim and Mr. Siegert discussed this new deficiency over the phone, another attorney for Plaintiffs, Sean Kwak, emailed Mr. Siegert demanding that Defendants comply with their requested relief. Dkt. No. 41 at 2. Mr. Kwak first raised this issue with Mr. Siegert on July 6, and gave him until July 10 to comply. Dkt. No. 41-2 at 2. Later that day, Mr. Kwak emailed again and moved the deadline up to July 7. Dkt. No. 41-3 at 2. As promised, Plaintiffs filed their Third Motion to Compel on July 7, in which they also asked for sanctions for “bad-faith with respect to . . . discovery obligations.” Dkt. No. 41 at 2.

         This Court granted Plaintiffs' motion in part, ordering Plaintiffs to specifically address their interrogatories and RFAs and for Defendants to respond accordingly. See Dkt. No. 44. No sanctions were imposed at that time. Dkt. No. 44.

         II. Myong Ja Koo's Deposition.

         According to the instant motion, Plaintiffs uncovered more objectionable conduct in the course of depositions.

         First, during her deposition, Myong Ja Koo indicated that she was unfamiliar with the requests for admission and interrogatories that she signed, and that she was unaware that her signatures were made under the penalty of perjury. See Dkt. No. 46-1 at 18:5-18, 20:12-15. She even went as far as to say that she had never seen any document related to the case (id. at 17:24-18:4) despite the fact that she also admitted she had signed each of the RFAs and the responses to the interrogatories (id. at 21:15-22:7). Plaintiffs promptly gave up on questioning Myong Ja Koo, adjourning the deposition after a mere 34 minutes. See id. at 1, 22.

         It appears that this occurred because Myong Ja Koo cannot read English, so Mr. Siegert had her daughter, Patricia Koo, go over the interrogatories and RFAs with her mother. Dkt. No. 47 at 5. Patricia Koo, for her part, insists that she did review each of the questions with her mother. Dkt. No. 47 at 4-5. Either way, Defense counsel was not present during this process, and so did not explain the legal meaning of terms in those documents or the consequences of her signature on the page. Dkt. No. 56 at 59:6-17. Given Myong Ja Koo's answers at the deposition, Mr. Siegert also apparently did not review these documents with her before her deposition.

         During the hearing on the present motion, this Court ordered Defense Counsel to go over the documents with Myong Ja Koo to confirm her responses. In a preliminary ruling, this Court stated that Mr. Siegert would be sanctioned if the re-signed responses differed from the initial ones. Dkt No. 56 at 78:6-14. Defendants complied with that order and served opposing counsel with resigned responses that do not differ from the originals. Dkt. No. 52 at 1.

         III. Monthly Pay Record Summary Documents.

         According to the instant motion, Plaintiffs learned during Patricia Koo's 30(b)(6) deposition that some of the records of payment produced during discovery-the “monthly sheets”-were in fact prepared after the commencement of this litigation in order to summarize relevant business records. Dkt. No. 46-12 at 50:14-23. Defendants maintained in their opposition to the motion for sanctions that the summaries were produced after Plaintiffs asked for clarification of the initial business records that were produced on August 29, 2016. See Dkt. No. 47 at 3-4. Defendants stood by this representation in the motion hearing before this Court. See generally Dkt. No. 56. However, Mr. Siegert did not arrive at the hearing prepared with his own records to corroborate his version of events. See Dkt. No. 56 at 21:17-20. Thus, this Court asked that Mr. Siegert submit additional information to support his position.

         After reviewing his records, Mr. Siegert now admits that he did produce the summaries along with the original records all at once on August 29, 2016. Dkt. No. 52 at 3-5. It has also become apparent that Defendants did not, at any time, indicate to Plaintiffs that the monthly sheets were summaries of the contemporaneously kept records. In fact, it appears that Defendants may have affirmatively misled Plaintiffs to believe that the monthly sheets were contemporaneous records; in response to requests to admit that Defendants lacked overtime records, Defendants denied the request stating that overtime records were produced in response to discovery demands. See Dkt. No. 54 at 2; see also Dkt. No. 54-2 at 2-3.

         IV. Inconsistent ...


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